ACLU Urges Carnegie Mellon To Reverse Internet Censorship; Letter to University President Says Students Must Have Access to Information

November 8, 1994

FOR IMMEDIATE RELEASE

In a strongly worded letter to the President of Carnegie Mellon University, the American Civil Liberties Union today urged the university to reconsider and reverse its decision to prohibit student access to six network news groups that deal with sexual topics on the Internet.

"Carnegie Mellon has a well deserved reputation in higher education as a leader on technology issues," said Barry Steinhardt, Associate Director of the ACLU. "You have already recognized the extraordinary potential of networked communications to enhance and democratize speech.

"But if the full potential is to be reached, it is important that leaders like Carnegie Mellon stand strong for free and open access to information and that you resist the urge to censor," Steinhardt concluded.

In its letter, the ACLU said that Carnegie Mellon officials based their decision to remove the news groups on a broad misreading of Pennsylvania obscenity law. The vast majority of information on these news groups has never been challenged as obscene, the ACLU said, nor could the university be held liable for distributing this material through the Internet.

"Your policy sweeps far too broadly," the letter said. "Out of fear that your students may be exposed to a few unprotected works, you have cut off access to a large volume of protected ideas and information."

We write on behalf of the American Civil Liberties Union (ACLU) to urge Carnegie Mellon University to reconsider and reverse the decision to prohibit student access to six network news groups which deal with sexual topics. We believe that the University's plan is inconsistent with the principles of academic freedom and free speech, which a great University must defend, and is based on a serious misreading of relevant laws.

Carnegie Mellon's decision to offer its students broad access to the Internet and its thousands of news groups was a farsighted recognition that networked communications will increasingly provide the means for academic research and the forum for the free exchange of ideas. Like your decision to establish and nurture a library, it was a decision to give your students access to the widest variety of information and to allow them to make their own judgements about their worth.

Your decision to revoke access to the six news groups deprives your students of the opportunity to judge for themselves the value of these groups.

As we understand the rationale for your decision, the University is concerned about its potential liability under Pennsylvania's obscenity law and particularly its provisions relating to minors. We believe that the conclusions you have drawn are mistaken and misperceive your role in providing student access to the Internet. This also seems surprising since there has apparently been no effort by any governmental entity to assert the existence of any such liability.

To begin with, these news groups are not "obscene" merely because they contain sexually explicit materials. Most sexually explicit speech is protected by the First Amendment and only a small portion of sexually explicit materials can constitutionally be deemed obscene. A jury applying the three-part test of Miller v. California must decide on a case by case basis whether a particular work is obscene. There are literally thousands of postings to these news groups every year and only a small fraction have ever been challenged as obscene.

Your policy sweeps far too broadly. Out of fear that your students may be exposed to a few works that a court might ultimately find unprotected, you have cut off access to a large volume of protected ideas and information.

In fact, you have cut off access to information that is clearly of significant value to your students and deals with 0serious societal issues. For example, in barring access to the alt.sex news group, you have deprived students of access to all of its branches, including alt.sex. safe sex, which discusses responsible sexual behavior.

The University's conclusion that you must cut off access to these news groups because " it is a criminal offense to knowingly disseminate sexually explicit material to minors..." is equally troubling.

First, it is not illegal to distribute any "sexually explicit" material to minors. The state can only ban the distribution to minors of materials that satisfies the classic three part Miller test, as modified for minors. A careful reading of Pennsylvania law makes this clear. 18 Pa. C.S.A. 5903 applies only to those types of sexually explicit materials which satisfy the modified test and are "harmful to minors".

Secondly, even assuming that some of the material posted to these news groups might properly be restricted to adults, it is a well established principle that obscenity policies cannot reduce adults to reading only that which is fit for children. But that is precisely the effect of the new policy.

The vast majority of your students are undoubtedly over the age of 18 and legally adults. The policy effectively treats them as children and limits their access to materials deemed suitable for children.

That is not what the law requires and we do not think that you would draw this conclusion in other contexts. Surely, you don't believe that Pennsylvania law requires that the University library and bookstore, or for that matter your literature classes, must be purged of all sexually explicit material because there may be minors on campus or minors may access the imagery.

Finally, by its terms, the Pennsylvania obscenity law cannot be applied to the University's provision of Internet access; nor should it be. The Pennsylvania statute provides that a party can only be held liable for the content of material"... which is reasonably susceptible of examination by the defendant". (Sec 5903 (b))

By its very nature, the Internet is vast and chaotic. There are millions of speakers and countless speeches. The Internet is so large and disorderly that the University could never reasonably be expected to examine the content of every message available to your students.

Nor could you reasonably be expected to be able to control all access to any particular group of messages. One of the unique features of the Internet is that there are many paths to the same destination.

CMU's students are smart and technologically savvy. They will quickly learn how to use the access provided by the University to subscribe to Internet "mailing lists", to download archival files or to link with other networks to obtain exactly the same material that is available in the banned news groups.

The new policy assumes that the University has an obligation to prevent its students from obtaining access to any possibly illegal materials about which the University has knowledge. If that assumption is correct, then you have not gone far enough in simply blocking access to a few news groups. To meet such a heavy burden you would need to take the draconian steps of either monitoring all student communications or cutting off all access to the Internet.

Fortunately, the law does not impose that burden. The law properly holds speakers and publishers liable for the content of their messages. By offering your students access to thousands of news groups and hundreds of millions of postings, you are neither a speaker, nor a publisher. At most, you are acting as a distributor providing access to information, exactly in the same way that you provide access to library books, and could not and should not be held liable, for example, if a 17 year-old freshman happens to check out a book with "sexually explicit" content.

In fact, Subsection (j) of the Pennsylvania obscenity law explicitly exempts "any library of any school, college or university..." from its reach. The Legislature recognized that universities and libraries have special protections as access providers to knowledge and that you should not be chilled in your mission by the specter of criminal or civil prosecution of an obscenity law that you cannot be reasonably expected to enforce.

While your connection to the Internet may not be housed in your library building, it is no less deserving of the protection offered by Subsection (j). By providing wide access to the Internet, you are, in effect, functioning as electronic librarians and the exemption should apply. Furthermore, as a well established principle of constitutional due process, any doubts about applicability of Pennsylvania obscenity laws must be resolved in your favor.

Indeed, we would think and hope that the University would want to lay vigorous claim to this exemption in order to protect future concepts of academic freedom. A library free from government control is an essential component of a vibrant university. As technology changes the ways in which we store and access information, it seems beyond dispute that the digital library of the next century will bear far greater resemblance to the Internet than to today's brick and mortar constructs. As the technology changes, it is essential that we not lose sight of core principles of academic freedom.

Carnegie Mellon has a well-deserved reputation in higher education as a leader on technology issues. You have already recognized the extraordinary potential of networked communications to enhance and democratize speech. But if the full potential is to be reached, it is important that leaders like CMU stand strong for free and open access to information and that you resist the urge to censor.

We strongly urge you to reconsider the new policy. It is our understanding that the University's decision was made without consultation with your counsel. We hope that you will now take that step. We would be happy to provide your attorneys with additional citations and materials to facilitate a reconsideration.